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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on exceptions to the award of
Arbitrator David L. Beckman filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency filed an opposition to the
Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency violated
Federal law and the parties' collective bargaining agreement by reassigning the
grievant to his former position without reimbursing him for moving expenses.
For the following reasons, we conclude that the Union has not established that
the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In December 1990, the grievant was transferred to another facility for
training. Subsequently, the grievant was informed that he had failed the
training program at the new facility. On October 28, 1991, the grievant signed
a written offer accepting a reassignment to his previous position at no expense
to the Government. The Union filed a grievance in June 1992, alleging that the
Agency's failure to reimburse the grievant for his moving expenses related to
the second reassignment violated the parties' collective bargaining agreement
and 5 U.S.C. § 2302(b)(4) and (9).(1) The grievance was not resolved and
was submitted to arbitration. The Arbitrator framed the issue as follows:

(1) Under the circumstances presented, did Southern Region management
violate the National Agreement in reassigning and in denying moving expenses to
the Grievant[?]

(2) If so, what is the remedy?

Award at 3.

The Arbitrator found that the delay of more than seven months in filing
the instant grievance was "relevant, but not dispositive of the case."
Id. at 11. The Arbitrator noted that the issue of timeliness of the
grievance was not raised by the Agency in its answer or in its presentation at
the hearing. The Arbitrator found that an earlier grievance, decided by the
Arbitrator on May 1, 1992, (Moore) raised "timely issues of
interpretation which, at least arguably, affect the rights of the [g]rievant."
Id. Accordingly, the Arbitrator concluded that dismissing the grievance
on procedural grounds would be counterproductive to Federal policy encouraging
the arbitration of labor disputes.

With regard to the merits of the grievance, the Arbitrator determined
that Moore had no effect on the resolution of the instant grievance. The
Arbitrator explained that, generally, arbitration awards resolve particular
grievances and that a prior award may be applied to other grievances only to
the extent that the other grievances are factually the same as the decided
case. The Arbitrator stated that the grievants in Moore were "employees
who, prior to the signing of the National Agreement in May 1989, had acted to
their detriment on an implied promise that their moving expenses would be paid
back to their prior duty station in the event they suffered a training
failure." Id. at 13. The Arbitrator found that because Moore
"applied to a special situation," it could not be applied to the instant
grievance. Id. The Arbitrator explained that Moore could not
require the Agency to pay the grievant's moving expenses related to his
transfer following his training program failure because his original
reassignment occurred after, rather than before, the effective date of the
parties' agreement. The Arbitrator noted that employees are deemed to have
notice of the contents of a collective bargaining agreement upon its
publication. Accordingly, the Arbitrator found that, unlike the grievants in
Moore, the grievant had sufficient notice of the policy change regarding
the payment of moving expenses for transfers based on training program failures
because the new policy was stated in Article 58, section 8 of the parties'
agreement.

The Arbitrator found that under Article 58, section 8 the Agency's
obligation to pay the moving expenses of employees who are reassigned following
training program failure was not absolute. Rather, the Arbitrator determined
that the payment of moving expenses was subject to "'conditions subsequent' to
the conditions which were in existence at the time" the agreement was
negotiated. Id. at 16. The Arbitrator determined that under the
language of the parties' agreement, there could be no implied promise of
payment if permanent change of station (PCS) funds were not available. The
Arbitrator also found that the Agency had discretion to place transfers
resulting from training program failures at the bottom of the priority list for
allocating PCS funds and, consequently, to determine whether PCS funds were
available for such transfers. In this case, the Arbitrator concluded that the
Agency, in determining that there were no PCS funds available for transfers
based on training program failures, did not violate the parties' agreement by
failing to pay moving expenses related to the grievant's reassignment to his
former position.

The Arbitrator also determined that the Agency did not violate Federal
law. Because PCS funds were unavailable to pay relocation expenses, the
Arbitrator concluded that although the Agency's written offer of reassignment
to his previous position at his own expense was more costly to the grievant, it
did not violate 5 U.S.C. § 2302(b)(4) or (9). In the
Arbitrator's view, the written offer signed by the grievant represented a good
faith effort by the Agency to present the grievant with "the limited options
available" following his training failure. Id. at 18. Accordingly, the
Arbitrator concluded that the Agency did not engage in a prohibited personnel
practice, and denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator erroneously concluded that
Moore could not be applied to the grievance in this case. The Union
claims that the doctrine of res judicata prevents the Arbitrator from
reaching a different conclusion from the one he reached in Moore because
the issues raised and resolved in Moore were identical to those involved
in the instant grievance. The Union states that the essence of the decision in
Moore was that the grievants did not receive written notice of a
specific Agency decision that PCS funds would not be available for training
failure relocation expenses. The Union maintains that because the facts of the
instant grievance are the same as those in Moore, the grievant was
entitled to written notice of a specific Agency decision that his relocation
expenses would not be paid in the event that he failed the training program and
was reassigned to his former position.

Based on the Arbitrator's findings in Moore, the Union argues
that the grievant in this case had a reasonable expectation under Article 58
that the Agency would continue its past practice of paying training failure
relocation expenses until the practice was properly changed and implemented by
the Agency. The Union contends that Moore required the Agency to develop
procedures for implementing a new policy but that the Agency took no action
indicating that there had been a change in policy. In support of its argument,
the Union contends that the Office of Personnel Management (OPM) has stated
that any agency decision not to authorize reimbursement of relocation expenses
should be clearly communicated in advance and in writing to all applicants. The
Union contends that the exhibits presented by the Agency do not establish that
the grievant received written notice of a specific Agency decision that PCS
funds were unavailable because the exhibits were "manufactured" nearly two
years after the grievant's reassignment. Exceptions at 12. Therefore, the Union
claims that it was reasonable for the grievant to believe that the policy of
reimbursement for relocation expenses following a reassignment due to a
training program failure would continue.

The Union maintains that the Arbitrator's finding that the language of
the contract constitutes sufficient notice to employees that they would not be
reimbursed for return relocation expenses is unreasonable. According to the
Union, the employees have no way of determining whether PCS funds will be
available to pay for relocation at a particular time because the circumstances
regarding transfers are always changing and known only to management. The Union
argues that if the Arbitrator's interpretation of Article 58 stands, there will
be no safeguards to preclude the Agency from acting arbitrarily with respect to
reimbursement benefits.

The Union also claims that the Arbitrator's finding that the payment of
relocation expenses for transfers resulting from training program failures is
not absolute circumvents the purpose of Article 58. In this regard, the Union
argues that the award permits the Agency to defeat the terms of Article 58 by
making selections without available PCS funds, which will prospectively bar
bargaining unit employees who fail the training program from being considered
for relocation expenses. The Union further asserts that assuming the October
28, 1991, offer establishes the date of the grievant's reassignment, PCS funds
were available to pay his moving expenses. Accordingly, the Union argues that
the Arbitrator's award is deficient and requests that the grievant be
reimbursed for any reassignment resulting from training program failure.

B. Agency

The Agency contends that the award is not deficient because it is
inconsistent with a prior award. The Agency claims that prior awards do not
have precedential effect and that arbitrators are not bound by such awards
unless subsequent grievances are factually the same. Contrary to the Union's
argument, the Agency claims that the Arbitrator determined that the facts of
the instant grievance were substantially different from those in Moore
and, therefore, correctly declined to apply Moore to this case.

The Agency further contends that the principle of res judicata
is not applicable in arbitration, even where the issue is similar but arose
from a different incident. The Agency maintains that unless otherwise provided
by the parties' agreement, prior awards are published only as guidance and are
not binding as prior case law would be in a judicial forum. The Agency asserts
that the Union intended to base its argument in this regard on the principle of
stare decisis. According to the Agency, arbitrators are not bound by
either principle. The Agency claims that the Union's exceptions constitute mere
disagreement with the Arbitrator's interpretation of the parties' agreement and
with his reasoning and conclusions, which provide no basis for finding the
award deficient.

The Agency also claims that the award does not conflict with law and
regulation. The Agency explains that the grievant was selected in accordance
with merit system principles to go to another facility on the condition that he
achieve fully successful performance level status. The Agency maintains that
the grievant voluntarily signed the position reassignment letter, dated October
28, 1991, accepting a return to his previous facility because of his failure to
achieve the full performance level. The Agency contends that the Arbitrator
found no violation of 5 U.S.C. § 2302(b)(4) or (9) and that
the Union's exception to the Arbitrator's finding is nothing more than an
attempt to relitigate the grievance under the facts and evidence established in
Moore. Accordingly, the Agency requests that the exceptions be
dismissed.

Additionally, the Agency contends that the Union failed to comply with
the Authority's December 23, 1992, Order directing the Union to provide copies
of all the attachments to its exceptions filed with the Authority.(2) The Agency claims that certain
items cited by the Union in its exceptions were not listed in the index and
that other items were inaccurate or incomplete.

IV. Analysis and Conclusions

We reject the Union's contention that the doctrine of res
judicata prevents the Arbitrator from reaching a different conclusion from
the one he reached in Moore. It is clear that "the principle of res
judicata does not apply to arbitration awards[.]" SeeU.S. Patent
and Trademark Office and Patent Office Professional Association,
45 FLRA 40, 41 (1992). Consequently, we find that the award is not
deficient because it is inconsistent with the Arbitrator's award in
Moore. The Authority has held that awards are not deficient solely on
the basis that they conflict with previous awards. SeeAmerican
Federation of Government Employees, Local 2501 and U.S. Department of Defense,
Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee,
45 FLRA 1014, 1019 (1992). Moreover, we note that the Arbitrator
distinguished the facts in this case from the facts involved in Moore.
In this regard, the Arbitrator found that the original transfers in
Moore occurred prior to the signing of the parties' agreement. Under
those circumstances, the Arbitrator found that the grievants in Moore
had a reasonable expectation that they would be reimbursed for moving expenses
incurred as a result of training failure transfer based on an established past
practice. Unlike Moore, the Arbitrator found that, in this case, the
grievant was transferred to a new facility after the parties' agreement was
signed. The Arbitrator found that execution of the parties' agreement was
sufficient to put the bargaining unit employees on notice that reimbursement
for moving expenses resulting from a training failure transfer would be
provided only if the Agency determined that PCS funds were available.
Consequently, the Arbitrator concluded that Moore was not applicable to
this grievance, and the Union is merely attempting to relitigate this issue.
Id.

We construe the Union's exception regarding the Arbitrator's
interpretation of Article 58 of the parties' agreement as an assertion that the
award fails to draw its essence from the agreement. To demonstrate that an
award fails to draw its essence from the agreement, a party must show that the
award: (1) cannot in any rational way be derived from the agreement;
(2) is so unfounded in reason and fact, and so unconnected with the
wording and purpose of the agreement so as to manifest an infidelity to the
obligation of the arbitrator; (3) evidences a manifest disregard for the
agreement; or (4) does not represent a plausible interpretation of the
agreement. Id. at 1018.

The Union has not demonstrated that the Arbitrator's interpretation of
the parties' agreement renders the award deficient under any of the tests set
forth above. The Arbitrator found that the Agency's obligation to pay moving
expenses incurred by employees reassigned as a result of training program
failure under Article 58 of the parties' agreement was subject to certain
conditions, including the availability of PCS funds. In addition, the
Arbitrator determined that Article 58 provided the Agency with the discretion
to determine the priority by which PCS funds are allocated and, as a result,
whether such funds are available to reimburse employees for moving expenses
incurred as a result of a reassignment based on training program failures.
Therefore, the Arbitrator concluded that the Agency did not violate the
parties' agreement by granting the lowest priority in allocating PCS funds to
reassignments related to training program failures or by denying payment to the
grievant for moving expenses because PCS funds were unavailable for such
purposes.

We find that the Union erred in relying on the statement of OPM
concerning written notice of a specific agency decision not to reimburse
employees for relocation expenses. The statement by OPM was given in response
to a request by the Comptroller General for an advisory opinion in Eugene R.
Platt-Reconsideration, 61 Comp. Gen. 156 (1981) (Platt) and was not
central to the Comptroller General's decision. In Platt, the Comptroller
General reaffirmed an earlier decision holding that the transfer at issue was
in the interest of the Government and, therefore, that the employee was
entitled to reimbursement for his relocation expenses. The Comptroller General
provided some additional guidance to agencies for developing policies regarding
when to authorize reimbursement for relocation expenses. However, the
Comptroller General did not require that an agency provide written notice to
employees of a specific agency decision not to provide reimbursement for
relocation expenses.

We are aware of no law or Government-wide regulation mandating that
agencies provide written notice of a specific decision not to reimburse
employees for such expenses. Absent such a requirement, the opinion of OPM in
Platt does not preclude a determination that the contract provision in
this case was sufficient to put bargaining unit employees on notice that the
Agency would not pay relocation expenses of employees reassigned because they
failed the training program unless certain conditions were met. As we stated
above, the Arbitrator found that those conditions were not met and, therefore,
concluded that the Agency did not violate the parties' agreement by denying the
grievant reimbursement for his relocation expenses. We find nothing in the
Arbitrator's interpretation of Article 58 of the parties' agreement that is
irrational, implausible, or unconnected to the wording of the agreement. In our
view, the Union is merely disagreeing with the Arbitrator's interpretation of
the parties' agreement and attempting to relitigate the issues presented to and
resolved by the Arbitrator. Such disagreement provides no basis for finding the
award deficient. Accordingly, we deny the Union's exceptions.(3)

V. Decision

The Union's exceptions are denied.

Appendix

Article 58 Moving Expenses

Section 8: In the event a former full performance level
bargaining unit employee is unsuccessful in attaining journeyman status in a
facility to which transferred in the interest of career progression, the
Employer agrees to pay the moving expenses of the employee to another
bargaining unit position on a one-time basis, provided:

a. the Employer desires to retain the employee;

b. a position and change-of-station funds are available within the
region for such moves. Authorization of Permanent Change of Station (PCS) funds
for other types of moves takes precedent over funding moves under this
Section;

c. the employee is relocating to a facility to which it is primarily in
the best interest of the Agency to reassign the employee.

5 U.S.C. § 2302

(b) Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect to such
authority--

(4) deceive or willfully obstruct any person with respect to such
person's right to compete for employment;

. . . .

(9) take or fail to take, or threaten to take or fail to take, any
personnel action against any employee or applicant for employment because
of--

(A) the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation;

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The text of relevant provisions of
5 U.S.C. § 2302 and Article 58 of the parties' agreement are
found in the Appendix to this decision.

2. Although the Authority's records
reveal that the Union timely responded to the deficiency Order, the Authority
made no ruling as to whether the response fully complied with the Order.

3. In view of our decision, we find it
unnecessary to address the Agency's argument regarding the Union's failure to
provide the Agency with copies of the attachments to the exceptions.